THE BEDFORD GAZETTE
19 PtDUSllEll EVERY FRIDAY HORNING
BY B. F. MEYERS,
/l the following terms, to wit:
$2 00 per annum, if paid within the year.
$2.50 " ' if not paid within the year.
E7-No subscription taken lor less than si* months
tts""No paper discontinued until all arrearages aie
paid, unless at the option of the puhlishei. it lias
been decided by the United States Courts that the
•toppige of a newspaper without the payment of
arrearages, is priniit f'Acic evidence ol fraud and as
a criminal offence.
KJ"The courts have decided that persons are ac
countable for the subscription price o newspapers,
if they take them from the post office, whether they
subscribe for them, or not.
EDITOR OF GAZKTTF.,
DEAR SIR :
With your permission I wish to say to the read
ers of your paper that I will send by return marl to
all who wih it, (free) a Recipe, with full directions
for making and using a simp'e Vegetable Balm, that
will eflectually remove, in 10 days, Pimples, Blotch
e. Tan, Freckles, and all Impurities of tha Skin,
leaving the same'oft, clear, smooth and beautiful.
1 will also mail free to those having Bald Heads
or Bare Faces, simple directions and information
that will enable them to start a full growth of Lux
uriant Hair, Whiskers, or a "oustache, in less than
30 days. All applications answered by return mail
without charge.
Respectfully yours,
THOS. F. CHAPMAN,
Chemist,
No 831 Broadway. New York.
August 14, 1803—3 m
A GF.NTLF.MAN, cured of Nervous Debility.
Incompetency, Premature Decay and Youthful Er
ror, actuated by a desire to benefit others, will be
happy to furnish to all who need it [ ree of charge]
the recipe and directions for mikii g the simple rem
edy used in his case. Those wishing to profit by
his experience—and po-sess a Valuable Remedy—
will receive the seme, by return mail, (carelully
sealed) bo addressing JOHN B. OGDF.N,
No. 00 Nassau Street, New York.
August 14, 1863—3 in
Children owe mvrh of their Sickness to Colds.—
No niatw where the disease may appear lo be seat
ed, its origin may be traced lo suppressed perspiration
or a Cold. Cramps and Lung Complaints are di
rect products of Colds. In short Colds are the har
bingers ol half the di-eases that afflict humanity,
for as they no- caused hy checked perspiration, and
as five- eigots of the waste matter of the body es
capes through the pores, if these pores are closed,
that portion of d.sea6es necessarily follows. Keep
clear, therefore, of Colds and Coughs, the great
precursers of disease, or if contracted, hreaa them
up immediately, by a timely use of Madame Por
ter's Curative Balsam, Slid by all Druggists, at 13
cents and C.l cents per bottle.
Jan. 23, 1863 ly.
NEW JERSEY' LANDS FOR SALE.—Ar.so
GARDEN OR FKUIT FARMS.
Suitable for Grapes, Peaches, Peais, Raspberries,
Strawberries, Blackberries, Currants, he., of 1,2),
3, 10 or 20 acres each, at the following prices for
The present, viz: 20 .acres fov S2OO, 10 acres for
sllO, 5 acres for S6O, 2) acres for S4O, 1 acre for
S2O. Payable hy one dollar a week.
Also, good Cranberry lands, and village lots in
CHKTWOOD, 2. r ) by 100 feet, at $lO each, payable
by one dollar a week. The above land and larms
are situated at Chetwood, Washins.ton township,
Burlington county. New Jersey. For further infor
mal ion , apply, with a P. ()• Stamp, for a circular, to
B. FRANKLIN CLARK,
No. 00, Cedar street, New Y'ork, N. Y.
Jan. 16, 1863,-1 y.
}3rofcsdcnal (Hariis.
JVew banking git'onse.
8 So*,
Y nve opened a Bank of Discount and Deposit, in
Badfoid, Pa. Money lent and taken on deposit, and
collections made on moderate terms.
Tbev also have lands in lowa, Minnesota, Wiscon
ain. Missouri and Nebiaska, for fale or trade.
Bedford, Oct. 30, 1863—tf.
U . II • A K BR S ,
ATTORNEY AT LAW, Bedford, Pa.
Will promptly attend to alt business entrusted to
bis care. Military claims speedily collected.
Office on Juliana street, opposite the post-office.
Bedford, September 11, 1863,
IT. M KIMMSIX. I. W. LINGKNFKI.TF.R
KIMMELL & LINGENFELTER.
ATTORNEYS AT LAW. BEDFORD. PA.
[QTHave termed a partnership in the practice of
the Law. Ottice on Juliana street, two doors South
• f the"Mengel House."
JOB MANN. G - H - SFANO.
MASH & SPANG.
ATTORNEYS AT LAW. BEDFORD, PA.
The undersigned have associated themselves in
the Practice ot the Law, and will attend promptly
to all business entrusted to their care in Bedford
■nd adjoining counties.
(jybifice on Juliana Street, three doors south
ef the "Mengel House," opposite the residence of
Wsj. Tate.
Bedford, Aug. 1, 1861.
Jons CESSNA. °- F " SHANNON.
CESSNA & SHANNON.
ATTORNEYS AT LAW, BEDFORD, PA.,
OyHave formed a Partnership in the Practice of
the Law. Office nearly opposite the Gazette Office,
where one or tRe other may at all times be found.
Bedford, Aug, 1, 1861.
JOHN P. REED,
ATTORNEY AT LAW, BEDFORD. PA.,
Respectfully tenders his services to the Pttb/te.
second door North of the Mengel
Bouse
Bedford, Aug, L_IBOJ.
JOHN PALMER,
ATTORNEY AT LAW, BEDFORD, PA.
(X7"Will promptly attend to all business entrus
ted to his tare. Office on Julianna Street, rnear.
It opposite the Mengel House.)
AugM, 1861.
A. 8. COFFROTU,
ATTORNEY AT LAW, Somerset, Pa.
Will hereafter practice regularly in the several
Courts of Bedford county. Business entrnsted to
his care will be faithfully attended to.
December
~~ SAMUELKETTERMAN,
BEDFORD, PA.,
ny Would hereby notify the citizens of Bedford
county that be has moved ro the Borough of Bed
ford, where he may at all times be found b persons
wishing to see him, unless absent upon business
pertaining to his office.
Bedford, Aug. 1,1861.
JACOB REED, J.J. SCRELL,
REED AND SCHELL,
BANKERS & DEALERS IN EXCHANGE,
BEDFORD, PF.NN'A.
OyDRAFTS bought and sold, collections made
and money promptly remitted.
Deposits solicited.
REFERENCES.
Hon. Job Mann, Hon. John Cessna, and John
Mower, Bedford Pa., R. Forward, Somerset, Bunn,
Raiguel k Co., Phil. J. A'att & Co., J. W. Cuiley,
A Co., Pittsburg.
gT. CHARLES HOTF.L,
CORNER OF WOOD / ND THIRD STREETS
PITTSBURGH, pa-
HARRY SHIRLS. PROPRIETOR.
April 1J 1861. .
VOLUME *lO.
NEW SERIES
SUPREME COURT OF PENNS'A.
Act of Congress of 3d March, 1863, com
monly called the "Conscription Law,"
Declared Unconstitutional.
HENRY S. KXKKDER, j
vs. | Three hills in equity.
DAVIDM.LANE, et at. }-And on a motion in
FKAN. B. SMITHES same | each ease for special
\V. F. NICKKI.SI'S same J injunction.
Opinion of Justice Thompson.
The act of Congress under which the com
plainant in this ease is required to enter tlto ar
my of the United States as a soldier, for a pe
riod of three years or during the war, provides
for the enrollment, by officers of the United
States, of all persons liable to do military duty,
between the ages of 20 and 45 years, and clas
sifies them. The names of all persons thus en
rolled, were required to he put into a wheel,
and the requisite number for the districts, with
a surplus of 50 per cent, for contingencies were
to be drawn thence, under the supervision of
certain federal officers. Those thus drawn from
the wheel, if not exempted from disability or
otherwise, will ho compelled to servo for the pe
riod mentioned, or find acceptable substitutes,
or commute the service by the payment of S3OO.
llcyond all controversy this is a draft, or in
voluntary conscription from the militia of the
State, without any requisition tipon Stale Ex
ecutives, or upon officers in command of the
militia in the State, and without any reference
to State authorities whatever. Is this enact
ment in accordance with the federal constitution I
The answer to (his question determines the case,
for it is not denied that the complainant is with
in the provisions of the act, and was drawn as
and for a soldier under its provisions. He must,
therefore, servo, if the act be constitutional, or
seek exemption under some of its provisions.
Our jurisdiction of the case, I think is plain.
We have authority to restrain acts contrary to
law, and prejudicial to the rights of individu
als, act of lGlli .June, 1836. If the act of
Congress of 3d March, 1803, under and by vir
tue of which the complainant is holden as a sol
dier, and sought to he coerced into the service,
he not constitutional, the custody of his person
under pretence of it, is contrary to law, and
prejudicial to his interests. The injury too, if
the proceedings be illegal, is undoubtedly with
in what is denominated irreparable injury or
mischief, and hence the propriety of the specific
remedy. An action for damages would perhaps
not lie sustainable under a recent act of Con
gress, but if it should be, it would bo against
parlies who intended no injury, and from whom
on account of obeying what they supposed to
be law, in conducting tho proceedings against
him, but little could be recovered, although the
soldier may have been carried to distant places,
from bis home, and may have undergone great
hardships and vicissitudes. I dismiss this branch
of the case, with this short view of it, and with
the additional remark, that if our judgment is
against the constitutionality of the law, the case
can he removed to the federal judiciary at Wash
ington, if the authorities there see proper, and
be reviewed by the Court in the last resort in
such cases; u thing which the President of the
linited States lias, on a recent occasion, express
ed a wish for. and determination to facilitate.
I now proceed to tlio main question. The
coustitutiou of the United States defines and e
nuuieratcs the powers of the General Govern
ment, and limits tlicm by the solemn declaration
that "the powers not delegated to tho United
States by the constitution, nor prohibited by it
to tho States, are reserved to the States respec
tively, or to the people."
The Government established by tho Constitu
tion, is, therefore, a limited Government, be
yond the limitations of which, including neces
sary incidents of expressly granted powers, all
exercise of authority by Congress is mere usur
pation. We should remember this in constru
ing the Constitution, and we should remember,
also, that the entire machinery of Government,
provided by it, was poised between checks and
balances designed not only to prevent it from
transcending its own orbital limits, but to guard
against aggressions from other sources. The
objecls to be attained, as declared in the pream
ble must also be kept in view, when we are call
ed to expound its provisions; and we are bound
to construe it so as to preserve and advance
tliem all. The purpose, as declared in the pre
amble, was "to form a more period Union, es
tablish justice, ensure domestic tranquillity, pro
vide for the common defence, promote the gen
eral welfare and secure the blessings of liberty
to ourselves and our posterity." Each of these
objects are supposed to lie secured by the Con
stitution, and no one of thera must be overlook
ed in a too eager desire to lend n supposed effi
cieney to sonto other. To do so would endan
ger the whole. To "provide for the common
defence" is one purpose avowed for establishing
the Constitution, and the duty devolves on Con
gress to execute it; but it must not be executed
in sucli a tuunncr as to encroach on the para
mount purpose of securing "the blessings of
liberty to ourselves and our posterity," also de
clared. This is one instance to shotv that no
legislation, nor no construction can be valid or
sound which is not in harnony with every pro
vision of the Constitution.
In the light of these general and fundamen
tal principles, wo must investigate the grave
questions presented hy the bill of the complain
ant now before us. And here I may express
my regrets, that it did not meet the views of the
government officials, having in charge the law
department for this United States district, to
appear at the argument of this case, of which
they had notice, and give us the benefit of their
views and researches on the momentous ques
tions involved. It can hardly, I presume, be
fairly attributable to a disregard of what might
be the ultimate judicial action of the State 011
the question, or in contempt of State authority
altogether. Whatever tnay have been the rea
son for the course adopted, the magnitude of the
question involved is not at all diminished there
by, nor ia our duty most carefully to examine the
Freedom of Thought and Opinion.
BEDFORD, PA., FRIDAY MORNING, NOVEMBER 27,1863.
whole case tti all its aspects, the less imperative.
Js the Act of Congress approved March 3d,
18ti3, entitled "An Act for enrolling and call
ing out the national forces, and for other pur
poses," now familiarly known as the Conscrip
tion Act, unconstitutional.'
In order to provide for the common defence
and thereby promote the general welfare, Con
gress has, by the constitution, power to "raise
and support armies," und "to provide and main
tain a navy." was under no extraordinary
pressure of circumstances or emergent necessity
that this power was granted. It was deemed
to be, and thereupon introduced as, a pert of
the ordinary machinery A government, the con
vention acting on an axiom as old as govern
ment itself, "that the .--urest means of avoiding
war is to prepare for it in time of peace."—
Without such a power, "it would," says Story
in his commentaries on the constitution, section
1185, "present the extraordinary spectacle to
the world of a nation incapacitated by a con
stitution of its own choice from preparing for
defence before actual invasion."
It was an ordinary power, not superinduced
by impending war. "In the mild season of j
peace," says the Federalist Mo. 2, "with minds 1
unoccupied by other subjects they (the conven- I
tion) passed many months in cool, uninterrupted j
and daily consultation; and, finally, without '•
having hecn awed by power, or influenced by '
any passion, except love lor their country, they
presented and recommended to the people the
plan produced by their joint and unanimous!
councils." Is there room for a doubt that un- I
der sucli circumstances, the mode in which the '
power to "raise armies" was to be executed was I
the accustomed one; namely, hy voluntary en- |
listments! At the tunc, this was the usual mode 1
of raising and recruiting armies in Great Jirit- j
ain, and the people of this country were better j
acquainted with the laws, customs, and even
habits of the people of England than of those
of any other people in the world. Notwith- j
standing we had been at war with tlicm, and an i
angry spirit had been generated between the two .
countries, yet it is a notorious fact that their !
customs and laws were generally adopted in this
country, and to this day continue to a great ex- j
tent. Voluntary enlistments as by contract, ;
was the general method of raising armies there 1
and with us prior to and at the lime the Cousti- i
tution was framed. As this was the customary {
mode, every presumption supports the idea that
this was the only mode in the minds of the frit
mers of the Constitution. Indeed, it is a com
uion law rule, that when anything is directed to
be done without special instructions as to how
the act is to he performed, the customary mode
of doing It, is supposed to tie Included til tiicdi
rection. Wo cannot suppose that at the mo- j
ment the country had achieved its liberty, at so i
much cost of blood and treasure, that such a j
despotism over the lives and liberties of men [
would he incorporated into the Constitution as j
would authorize Congress to lili the armies to !
be raised by conscription, as though by the agen-1
ey of the press gang. This was no more in the
contemplation of the convention than that the
civil department of the Government should also I
be tilled by coercive measures. Can any one I
now be credulous enough to believe that if a
power had been supposed to exist, to raise an
army not by voluntary means but by coercive,
especially as there were no limits fixed as to its!
magnitude, that the Constitution would have j
been ratified by the States? The idea would, it |
seems to ine be preposterous. Without speb a j
thought once having been suggested by the op- i
ponents of the. Constitution, a standing army to '
be raised in the usual way, was a source of inn- i
liy fears in the public mind. It was thought to !
bo dangerous to liberty in its very nature, but |
what would have been thought, if it had been j
discovered or avowed that in its creation it might 1
be directly and openly destructive of the indi
vidual liberties of those who were to compose
it, and that it might be extended to embrace all
the able-bodied citizens in the States'. It requir
ed many numbers of the ablest paper ever writ
ten on ihe Constitution, I mean the Federalist,
to remove those fears. See Fed. from Mo. 2-4
to 28 inclusive on this sujeot.
The constitution was adopted in ignorance,
certainly, of any such power if it does exist,
and it has required the lapse of three quarters
of a century to developc its latent evils. The j
usual evidences are all against the idea, and I
think something more demonstrative will show .
that these evidences stand not alone against it.
The power to raise an army by conscription I
or coercion, (the words are nearly synonymous.)
A conscript is one taken by lot from the con
scription, (or enrollment) list, "and compelled
to serve as a soldier or sailor," (Web. Die. verb,
"conscript,") rests alone on the idea that the
power is unlimited, us to the means to be used,
us well as to the numbers of which it may be
composed. It there was no other power or
principle in the instrument to be affected in its
operation by such a viow, there would be force
in the idea. Hut the constitution must be ad
ministered so that the whole may stand in full j
force, unimpaired by any particular portion. j
The limitation of a power may appear other- j
wise than by express terms. Its scope may be j
curtailed by the necessity to preserve some other j
function necessary to co-exist for preservation j
of the whole. One object in framing lite Con- j
stitution, as already remarked was to "perpet- !
nate the blessings of liberty." It can hardly I
be contended for by anyone, that the execution :
of a power wliieh would effectually destroy this
object would be constitutional. Again, a pow- ;
or so executed fls to destroy the reserved rights
of the States could hardly Ire claimed to be con- J
stitutional. There are, therefore, limitations as j
effectual as if expressed, "< res tnagis valeat '
quam ptreat" is a maxim out of which this grows.
A limitation of this power was undoubtedly
supposed to exist in the discretion of Congress; i
but that cannot be relied on in this argument.
To give it any force would be to allow tho acts
of Congress to bo evidence to establish tho pro
per discretion of Congress. This would be to ;
argue in a circle, and would prove nothing—we 1
are testing the acts of Congress, not by Con-
gress, but by the Constitution. So, too, it was
I supposed to exist in a time when no more vol
j untary enlistments could reasonably be procured,
I or when they might not be procured rapidly e
-1 Jiough. That this was so is demonstrable by
: the fact that the Constitution provides for call
j ing out the militia when the army may not be
( sufficient. I use this contingent expression bc
| cause I look on the army as an ordinary power,
\ and ordinarily to be used unless insufficient for
the end in view, or the exigencies of the times.
■ However, this may be, it is absolutely certain
, that the military forces of the government for
| all purposes, were to be the army and the militia.
In the article of the Constitution containing
I the power to "raise and support armies." and
i consecutive to that and other war powers and
lus part of them, is the power to be found in
i Congress "to provide for calling forth the mili
j tia to execute the laws of the Union, suppressin
surrections and rebel invasion ?" "To provide
for organizing, arming and disciplining the mi
litia, and forgoverning such part of tbem as
may be employed in the serrice of the United
States, reserving to the states respectively, the
appointment ol officers, and the nuthority of
training the nulitiu aceardjng to discipline pre
seibed by Congress.
The array to be raised and the militia liable
to be employed in the service of the United
States, are the constituted military force of the
Government. They co-exist, and must co-exist
if the Constitution be obligatory. We some
times employ volunteers,but they are merely a
form, as they are a part of the militia and do'
not militate against the idea of the two species
of forces. It is conceded that both may not
be required in any given case, but both must
exist, or rather the militia can not be destroyed
or extinguished by an Act of Congress. The
Constitution forbids this by the positive injunc
tion to provide for organizing, arming and dis
ciplining thotn. They are the security of the
States against the Federal Government, and
their only security: for the States themselves
are not allowed to support armies.
"It may safely be received as an axiom in
our political system," says the Federalist, No.
28, "that the State governments will in all pos
sible contingencies afford complete security a
gainst invasions of the public liberty by the
national authority," * * * "They
can at once adopt a regular plan of opposition
in whith they can combine all the resources of
the community!" How can this security be
afforded against the danger of invasion of the
public liberty by the National authority, unless
there be some military force with which to re
sist it! What resources nre there, in a commu
nity, it" all the "able bodied men" may bo ab
sorbed in the national forces. It will at once
he agreed, I think, in view of the constitution
al provisions cited that the militia, the only
power of the States must be maintained in tact
and that no system is constitutional which ex
tinguishes them. Let us inquire, therefore,
whether or not, the act of Congress of 3d of
March, 1863, known its the Conscription Act,
does not in fact attempt the complete demolition 1
of the militia of the States.
The preamble to the act sets forth the exis
tence of insurrection and rebellion; that a mili
tary force is indispensable to suppress it; that
to raise and support, which "all persons ought
willingly to contribute," It is therefore enact
ed, See. I. "that all able bodied male citizens
of the United States and persons of foreign
birth who shall have declared on oath, their in
tention to become citizens in pursuance of the
laws tlierof, between the ages of twenty and
forty-live years except as excepted, are hereby
declared to constitute the National forces and
shall be liable to perform military duty in the
service of the United States, when called out
by the President for that purpose." Then fol
low numerous provisions for classifying them,
for the lottery or draft of the required number
in each military district, the closing up of the
whegl until again required, and the order and
term of service, not as militia men belonging
to and officered by the States, hut as parcel of
the army of the U. States raised and support
ed" under the clause of the Constitution which
provides for raising and supporting armies and
to he officered by federal authority, exclusively.
Every able bodied man in the United States
by these provisions enrolled, and declared to
constitute the national forces. This covers the
entire materiel of the militia in the Union. All
able bulicd white men between twenty one and
forty-five years, and liable as militia men in
this Commonwealth and it is believed tint this
is about or near the standard in most, if not
all, the other States. This act is broader, both
as to age and color. The specified age, how
ever amounts to nothing, for Congress by a
very slight extension of power in fixing the
standard could just as well have made it to in
clude all between the ages of eighteen and six
ty. Let the power be once established, the
right must follow, and in this way, every man
in public or private life in a State botween those
ages, might le included. No one is exempt un
der tho present law but the Governor. All
other officers, judgos, legislators, representatives
in Congress, sheriff, magistrates, county and
township functionaries of every description, if
under forty-five, are liable now to bo forced in
to the army or to commute by the payment of
S3OO, or to find substitutes. As it is, this
would draw heavily upon the public, and ne
cessary local officers—but if extended to the
ages of eighteen and sixty, as it could as read
ily bo made to do, it might include all, not ex
cepting even the Governor. Can it be that the
machinery of our government is so incongruous
as to admit of this I Can it for a moment be
believed that the trainers of the Federal Con
stitution intended to create such a monstrous
power? One that would not only absorb the
military authority of the State but the civil al
so. This is exactly the principlo of this cnnct
mcnt and to a great extent will be tho practical
workings of it.
I hold that the act plainly and directly des
troys the militia system of the States, as recog
nized in the Constitution, and the acts of Con-
WHOLE NUMBER, 3033
VOL 7, NO 17.
gress of 1792 and 1795. By its provisions the
militia are to be enrolled, as part of the Nation
alforces, another term, as will be seen for Nation
al armies, and it requires each individual so en
rolled, to answer and report himself, when
drawn, to the militajy officers of the Federal
Government, under the pains and penalties pre
scribed for desertion. If this is not a taking
possesion of the entire materiel of themiltiaand
consequently the militia itself bodily, I cannot
comprehend the meaning or effect of language.
The direct object of the act is to constitutute
the National forces of the same materiel as that
which constitutes the militia of the State, and
for that purpose a Federal enrollment is made
and a portion so enrolled, and drawn from the
wheel and separately and individually trans
ferred to the army of the United States to be
commanded not by State, but by United States
officers. They are henceforth not militia men
but regulars. They are to be carried into the
army under the power granted to Congress "to
raise and support armies;" not under that oth
er power which authorizes Congress "to provide
for calling out the militia to execute the laws,
suppress insurrection and repel invasion." If
called out in this capacity, it would he done by
requisition of the President upon State author
ities, at least, upon State military officers, and
then the militia would come forth in organized
bodies, not as individuals, and lie officered by
State authority. This is widely different from
directing the Federal authority toeacli individ
ual—to conscript him in his individual charac
ter. and to compel him to serve not with State
contingents and under State officers, but under
Federal or army officers.
In short, the provisions of the Act. incor
porates into the Federal armies, the entire ma
terial constituting the militia, by directing their
authority to them individually, without a re
quisition on the States, and without any power
in any State to appoint a single officer to com
mand them, although the entire force was, by
the Constitution to be when called into the ser
vice of the Urtitcd States, under the military
officers of the State. Such an Act, disregard
ing such plain provisions of the Constitution,
is certainly unconstitutional, if such a thing be
possible, at all of any act of Congress, and this
view, if correct, establishes conclusively the lim
itation or the power to raise and support armies.
Those enrolled and not drawn out of th e
wheel at the first draft, remain subject t) lie
called out afterward. They are the unemployed
natioml forrc.l, and are declared to he subject
to be called into service under the plan of the
act for two years after the Ist of July succeed
ing the. enrollment, to serve for three years or
during tho wnr. It is true, tvhen called into
service, the act says they shall he "placed on
tlie samtf footing in all respects as volunters in
cluding advance pay and bounty, as is now
provided by law." I presume it is not meant
by this, that the coascripts are to elect their
own officers, lint even if this were so, it would
be no less a deprivation of the right of the States
to appoint the officers of their militia, and
unconstitutional for that reason.
As the enrollment or conscription into the na
tional forces for two years, although unem ploy
ed, is nevertheless an incorporation of them with
the national forces; it is a withdrawal of them
for that period from the control of the States.
The act would bo worth nothing if the States
might resolve that this should not be. The act
of Congress is supreme or it is nothing. If it
l>e supreme then the enrolled men can be and
are directly under tho federal authority all the
time, and thus every citizen or enrolled person,
in or out of service, may be liable to be con
trolled by military law all the time, if Congress
chooses. Can this be possible ? What is to be
come of the States and their sovereignty, a mat
ter often sneered at, but among tho most distinct,
clear, and cherished principles in the whole body
of the constitution. One portion of the militia
conscripted and actually in the field, the balance
conscripted and not yet in the field, hut su bjeet
to the military authority of the United States,
where are the military and where, is the securi
ty of the States against l>eing entirely absorbed,
and against invasions of the public liberty bv
the national authority, which the writers of the
Federalist thought existed in tho militia? It is
neither in,tho field, nor at home, it is abolished.
| Apprehensions doubtless, of just such an en
j actment as this now under consideration super
induced tho introduction of tho Hill of Rights
by amendment and consent of two-thirds of the
States, in which is the declaration that, "a well
regulated militia being necessary to the securi
ty of a free State, the rights of tho people to
keep and bear nrms shall not be infringed."
1 contend that tho act of Congress under
discussion, violates this declared right, by ab
sorbing the militia into tho army, as contra-dis
tinguished from tho militia; by taking all the
material which constitutes tho militia and call
ing them out individually without requisition on
tho States, and placing them under officers not
chosen by the States.
It disregards the organization of the militiu
altogether, not only in providing others than
militia officers, but in its total disregard of State
regulations and exemptions. Heads of depart
ments of the States, judges of tho several courts,
ministers of the gospel, professors in colleges,
school directors arc exempt by our militia law.
Hut the mode adopted for calling out the for
ces of the country, disregarding tho militia sys
tem, disregards all these. These were within
the militia, hut as the militia itself is overthrown
by the Act in question, they fall with it. It is ,
possible that this power may lie exercised, and
tho States livu through it, hut although they
may not fall, their foundations will be fatally
and if tho precedent remain, it will in
time become tho authority for their extinction.
The Constitution authorizes Congress to pro
vido for calling out the militia to suppress in
surrections and repel invasions.'' During the
whiskey insurrection in this State, President
Washington called upon the militia for this pur
pose. by a requisition on the Governor, and in
person commanded them. So the militia were
called out from many of the States during tho
' Hates of SUmrrtißina.
On# Square, thrse weeks or less. .* |i ff
One Square, each additional imartion leaa
than three months tg
3 SOUTHS. 6 MONTHS. 1 TIAB
i One squara • S3 00 |4 00 $6
Twosquarea ....... 400 SOO
Three 500 700 12
J Column 600 900 IS 00
i Column 800 IS 00 30 (
4 Column 12 00 18 00 30 00
One Column 18 00 30 00 SO 00
Adminisrratori'undExecutors' notiees S3.SO, An
chors'notices $1.50. if nnder 10 lines. $2.00 if
more than a iquare and leaa than 20 lines. Kstraya,
$1.25, if but one bead it advertised, 23 rents for
every additional head.
The space occupied by ten lines of this size or
type counts one square. All fractions of a square
under five lir.es will be measured as a half square
and all over Ave lines as a full square. All legal
advertisements wil 1 be charged to the person hand
ing them in.
war with Great Hntain, and in every instance
h requisition made by the President upon the
Governors of the States. It is true that in
1814, the question was much agitated in Con
gress whether or not, under the power to "raise
armies," the militia might not be conscripted
by the Federal authority. The bell which pro
posed this had the sanction of high names—but
it differed much from this Act and was never
finally acted on, liecuuse of the termination of
the war by the peace of Ghent. The discus
sion on this bill was able, but partizan, and
furnishes little aid to a judicial examination,
and hence I have not recurred to it much in
taking tjie view herein expressed. That a Gov
ernment like that of Groat Britain may resort
to conscription to fill the ranks of her armies
and has done so on many occasions, is no ar
gument or precedent for that practice under the
Federal Constitution. Even in England, this
j is far from the ordinary mode of recruiting tho
army, and it will hardly be contended that tho
exception to the rule wdl establish a custom, by
which to define the meaning of the words "to
raise and support armies,'' used in our federal
constitution, so that ex tn termini, conscription
or draft, both involuntary modes, were thereby
meant.
But the precocent would go for nothing in
this inquiry, even if the practice had been com
mon in England. The difference between the
construction of the British and Federal Consti
tutions is radical. In the former, all govern
mental powers not expressly prohibited to the
government, may be la.vfully exercised. In the
latter whatever power is not expressly granted
is withheld. There is no grant of such a pow
er to the latter, as I have endeavored to show,
and no restraint upon it in the former, as tho
exercise of it proves.
This remark is equally applicable to the dif
ference between the State and Federal Con**
tution. Between them that same difference in
construction exists. The governmental power#
of the States extend to all rightful subjects, not
prohibited—and the national only to such as
are granted. It therefore does not advance the
argument a step in favor of those who contend
for the constitutionality of the Conscription Act,
to point to instances in which drafts have been
made by State authorities. Militia duty is com
pulsory in alt the Sates. They are not prohib
ited from compelling it any more than from com
pelling the payment of the taxes. It is in this
way, and in this way only, in my opinion, that
the national forces can be compulsorily raisedi
that is to gay, by a requisition on the State au
thorities for militia men in a just proportion to
population.
Why have not the militia been called out in
the present emergency ? They are composed of
the men the draft proposes to furnish. They
are to bo governed while in the service, as Con
gress shall prescribe. They may be reclaimed
tor one, two or three years, or while the insur
rection lasts, and will become just as good sol
diers in the one character as the other. They
are the constitutional power for that purpose, if
the army lie not sutlieient to etfect the object
without them. Why not employ them ? "There
is but one of two alternatives," says Judge Sto
ry, "which can be resorted to in cases of insur
rection. invasion, or violent opposition to tho
laws: either to employ regular troops or to
employ the militia to suppress them." [Story
on Con. sec. 1*201.] If it be said that tl;o mili
tia will be sufficient, which I deny with equal
training, I insist that the imperfection of tho
system is no justification for the overthrow in
part or in whole, of the Constitution.
There is nothing on eartli that I so much de
sire as to witness the suppression of this un
justifiable and monstrous rebellion. It must
be put down to save the Constitution, and tho
constitutional means for the purpose, I believe
it to be ample, but we gain but little, if in our
efforts to preserve it when assailed in one quar
ter, we voluntarily impnir other portions of it.
Its entirety is vital, it must ull stand, or it will
all fall, it can never he apportioned.
Believing that I have shown that the power
"to raise and support armies" is limited to vol
untary enlistments, and necessarily so limited
that the militia of the States may remain in full
force, I am implied by no choice of alterna
tives, to the conclusion that as the Act of Con
gress transcends these limits, and by force of
law attempts to abolish the militin, instead of
calling on them to suppress the insurrection now
so wide spread, I am of opinion that the act of
Congress is violative of tho Constitution of
the United States, and void.
I most sincerely confess that it would have
been u much more agreeable duty to me to have
been able at this lime and at all times, to have
given my full accord to the measures resorted to
to restore the peace nnd order of our once hap*
ny country, but looking to the Constitution, as
the reasons for its provisions, and then to the
solemn obligation which I have voluntarily come
under to support tho constitution, I cannot, even
at tlioriskof misrepresentation of motives, hes
itate where the question is a judicial one, to ex
press my unmixed convictions as I hare done,
of tho enactment in question.
Standing recently on the gentle slopes atKun
nyinede, memory sent a thrill to my heart in
admiration of those old liarons who stood up
there and demanded from n tyrannical sovereign
that the lines between power nnd right should
bo then and there distinctly marked, and all my
feelings at the sauio moment paid an involunta
ry tribute of regard to tho fidelity with which
their descendants have maintained what they
then demanded and obtained, although, of
ten overshadowed by insurrection and war. Our
forefathers marked these lines in the Federal
Constitution. 1 must Rdltere to them. I can
not help it, and while I live I trust to Heaven
that 1 may have the strength to suy that I will
ever do so.
There is no legal authority, in my opinion In
the otlicere of the Government to hold the com
plainant against his consent. 1 am therefore in
favor of enjoining them as prayed for until fur
ther hearing, and I agree to tho saute order in
the other oasns.
*